Dubs v. N. Pac. Ry. Co.

• Decision Date: 28 September 1923
• Citation: 50 N.D. 163,195 N.W. 157
• Parties: DUBS v. NORTHERN PAC. RY. CO. et al. (two cases).
• Court: North Dakota Supreme Court

50 N.D. 163

195 N.W. 157

DUBS

v.NORTHERN PAC. RY. CO. et al. (two cases).

Supreme Court of North Dakota.

Aug. 20, 1923.

Rehearing Denied Sept. 28, 1923.

Syllabus by the Court.

A special verdict must be complete and consistent in and within itself. It must find all facts essential to sustain or defeat the cause of action in order to be sufficient to support a judgment.

When a case is submitted to the jury for a special verdict, a party does not waive the right to challenge the sufficiency thereof to support a judgment on the ground that the verdict contains no finding upon a material controverted issue, although the questions submitted were agreed to by both sides, when the burden of proving such fact, whether it be as a part of the cause of action or defense, is upon the adversary.

Where a special verdict contains questions upon two different theories of liability, one of which is unsound because it involves a breach of no legal duty owing to the plaintiff, and it cannot be determined upon which theory the defendant was found guilty of that negligence which the jury says was the proximate cause of the injury, the verdict is fatally defective.

Where both parties agree that immaterial questions be submitted to the jury, the right to object thereto is waived, and a reversal will not be ordered on that ground, unless the verdict, by reason of answers to immaterial questions, be thereby rendered wholly equivocal and indefinite, so that it cannot be determined whether the jury found the existence or nonexistence of facts legally necessary to support a verdict.

Bronson, C. J., dissenting.

Appeal from District Court, Grant County; H. L. Berry, Judge.

Action by Edmund Dubs, an infant, by Rudolph Dubs, his guardian ad litem, and by Rudolph Dubs against the Northern Pacific Railway Company, a corporation. Judgment for plaintiff in each action, and defendant appeals. Reversed, and new trial ordered.Young, Conmy & Young, of Fargo, for appellant.

Jacobsen & Murray, of Mott, for respondents.

JOHNSON, J.

This is an appeal from a judgment entered upon a special verdict in the district court of Grant county in the Sixth judicial district, and from an order denying defendant's and appellant's motion for judgment notwithstanding the verdict or for a new trial.

The grounds of the motion are, in substance, that the plaintiff, Edmund Dubs, was a trespasser on the right of way; that the evidence of plaintiff's own witnesses shows that the boy was not discovered upon the track in a place of danger until the train was within 40 feet of him and that after such discovery every precaution was taken to avoid injury; and that there is no negligence shown by the evidence on the part of the defendant company, but that, on the contrary, the evidence shows that the plaintiff was guilty of contributory negligence.

This case was formerly before this court on appeal, and is reported in 42 N. D. 124, 171 N. W. 888. The facts are fully stated in the former opinion, and they are not substantially different in the case at bar. At the trial of the case now before us, the plaintiff called as his witness one H. H. Warren, the engineer of the defendant's train which ran over the plaintiff, and elicited from this witness in his own behalf testimony with reference to the accident. We do not deem it necessary to set out the facts in full, but shall refer to them merely as occasion requires in the course of the opinion.

This is a tort action. It is founded upon the theory that the defendant owed a legal duty to the plaintiff, which it failed, without lawful excuse, to perform, and that, because of such failure, the plaintiff suffered injury for which defendant should respond in damages. There can, of course, be no actionable negligence unless there be a failure to perform a legal duty owing to the injured party.

The plaintiff was injured while a trespasser upon the tracks of the defendant near New Leipzig in Grant county, this state. In the former opinion in this case, this court, speaking through its present Chief Justice, defined the legal duty which the defendant railroad company owed the plaintiff trespasser as follows:

“It was the duty of the defendant to exercise ordinary care to avoid injury to the boy after discovering him to be in a place of peril. Failure to do so was willful negligence. * * *

The fact that the boy was a trespasser on the tracks of the defendant railway, and that he was guilty of contributory negligence, did not absolve the defendant from its performance of this duty. If it failed to perform its duty in this regard, its negligence is deemed the proximate cause of the injury, while the boy's negligence is deemed the remote cause of it.” (Italics are ours).

This court is, therefore, committed to the doctrine applied, as measuring the duty of landowners to trespassing human beings, in O'Leary v. Brooks El. Co., 7 N. D. 554, 75 N. W. 919, 41 L. R. A. 677, and likewise held to define the duty of railroad companies in cases of trespassing stock in numerous cases since (see Corbett v. Great Northern R. R. Co., 28 N. D. 136, 148 N. W. 4); that the company owes no duty to the trespasser until his presence in a place of danger becomes known, and that thereafter the measure of its duty is the exercise of ordinary care to avoid injuring him. Whether, and, if so, under what circumstances and to what extent, this somewhat severe doctrine should be relaxed in cases of injury to children who, because of immaturity, are wholly unconscious of the danger of being upon railroad tracks, it is not necessary now to decide, as the plaintiff testified that he knew and understood that one remaining upon railroad tracks was in a place of danger and might be injured by passing trains.

After this court, on the first appeal, had detailed the facts and commented upon special interrogatories answered in connection with a general verdict for the plaintiff, the court says:

“There is, however, no special finding of the jury that the engineer did in fact see the boy in time, after such discovery, to avoid the injuries. It is clear, therefore, under the evidence, that the doctrine of last clear chance applied, if the engineer saw the boy at or about the time he first saw the dog.”

The testimony in that trial as in this showed that the engineer first saw the dog 200 or 300 feet away. It was claimed that the dog obstructed the view so that the engineer did not see the boy until the dog jumped off the track. The evidence then, as now, showed, or tended to show, that the engineer did not in fact see the boy until about 40 feet away from him, and that, immediately upon seeing him, the brakes were put on and a good stop had, although not in time to avoid injury. At the trial this time, the engineer testified specifically, as a witness for the plaintiff, that he did not see the boy until about 40 feet from him, when the dog jumped up and left the track, and that, upon seeing the boy, he immediately put on the brakes, sanded the rails, and a good stop was obtained, some of the passengers being thrown from their seats.

The court, in the former opinion, concluded by saying:

“The majority also deem it proper to suggest that, in the event a new trial is ordered and had, special interrogatories ought to be submitted to the jury upon the controlling questions of fact arising under the last clear chance doctrine.”

From the opinion on the former appeal, it is clear that this court felt that in order to support a verdict against the defendant, the jury would have to find, as a fact, that the engineer “did in fact see the boy in time, after such discovery, to avoid the injuries,” and that upon this question the court was of the opinion that a special interrogatory, in the event of a new trial, should be submitted to the jury, in order to determine whether the defendant was guilty of actionable negligence. According to the holding on the first appeal, the jury would have to find, as a fact, when the engineer first discovered the plaintiff upon the track in a place of peril, and then to determine, as a fact, that after such discovery the defendant negligently failed to use ordinary care in avoiding injury to the plaintiff. This court refused to hold, although such a finding was necessary in order to justify the general verdict in that case, that the jury found, or intended to find, that the engineer saw the boy in time to avoid injuring him, but negligently failed to stop the train in time. Accordingly, a special finding on this point was suggested by this court.

Twenty-three interrogatories were submitted to the jury on the trial of the instant case, but no question required them to find when or at how distant a point the engineer discovered the plaintiff upon the track, or whether he discovered him in time to avoid injuring him in the exercise of ordinary care. The following interrogatories, and no others, bearing upon this question, were submitted:

(8) “Did the engineer of the train which ran over the plaintiff Edmund Dubs, before running over the said Edmund Dubs, discover the said Edmund Dubs to be in a position of peril on the railroad tracks? A. Yes.”

(9) “Did the said engineer, after discovering the said Edmund Dubs to be in a position of peril on the railroad track, fail to exercise ordinary care to avoid injuring him, the said Edmund Dubs? A. Yes.”

It is contended by the respondent that the answers to the foregoing interrogatories sufficiently find controlling questions of fact arising under the doctrine of last clear chance as directed in the former opinion. In order to determine this question, it becomes necessary to consider whether or not there is any evidence in the record which will support the answer to question No. 9. In the former opinion, this court said:

“There is no dispute in the evidence that the brake appliances were in fine working order and that a fine emergency stop was accomplished when some 30 to 35 feet away from the boy. * * * It was...